Hughes v. Hughes

• Decision Date: 18 March 1947
• Parties: HUGHES <I>v.</I> HUGHES
• Court: Oregon Supreme Court

180 Or. 575

178 P.2d 170

HUGHESv.

HUGHES

Supreme Court of Oregon.

Argued March 4, 1947.

Affirmed March 18, 1947.

Divorce — Courts — Jurisdiction

1. Ordinarily, where child is out of the territorial jurisdiction, court, in divorce case, has no authority to enter any decree with reference to custody of child.

Divorce — Courts — Jurisdiction

2. Where parties to divorce suit were both residents of county and their child's absence from county was only temporary and for convenience of parties, court had jurisdiction to make award with reference to child's custody.

Divorce — Courts — Jurisdiction

3. A court, having once acquired jurisdiction to award custody of child, does not lose jurisdiction to modify a decree merely because child is removed from the state.

Equity — Divorce — Modification of decree

4. Where there had been some uncertainty concerning amount owing by husband under divorce decree and husband expressed willingness to pay amount the court found due, husband was not precluded from obtaining modification of decree with respect to custody of child on ground that he did not come into court with clean hands because of delinquency in payments due under decree.

Divorce — Modification of decree

5. Where both parties lived in same city at time of rendition of divorce decree awarding custody of child to wife, reviewing court in proceeding for modification of decree with respect to custody assumed that trial court in rendering original decree assumed that right to visit child would be available to husband.

Divorce — Custody of child

6. Where both parties lived in same city at time of rendition of divorce decree awarding custody of child to wife, fact that parties lived more than a thousand miles apart when husband sought modification of decree to permit child to visit him during summer constituted a changed condition justifying modification of decree if child's welfare would be enhanced.

Divorce — Custody of child

7. Where it appeared that both husband and wife were fit persons and financially able to have custody of their 11 year old son who had been awarded to wife by divorce decree, husband was entitled to modification of decree to permit son to visit him for two months each summer on ground that such arrangement would be for welfare of child.

                  See 39 Am. Jur. 614; 27 C.J.S., Divorce, § 317; Court's power
                to modify custody decree as affected by absence of child from
                jurisdiction, note, 70 A.L.R. 526
                

Appeal from Circuit Court, Multnomah County.

FRED W. BRONN, Judge.

Borden Wood, of Portland (King & Wood, and Edward E. Grant, of Portland, on the brief), for appellant.

Earl S. Nelson, of Portland (Griffith, Peck, Phillips & Nelson, and Norman L. Easley, of Portland, and Cheney, Hutcheson & Gavin, of Yakima, on the brief), for respondent.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY and WINSLOW, Justices.

AFFIRMED.

WINSLOW, J. (pro tempore)

The parties to this litigation were married in Eugene on June 16, 1932. This is a controversy over the custody of a child, James B. Hughes, who was born in October of 1935. Domestic difficulties caused a separation of the parties, and, on January 18, 1938, the circuit court for Multnomah County granted a divorce to appellant and awarded to her the custody of the child. This decree likewise provided for the support of the child and for alimony to appellant. At the time this decree was rendered, the child was in Cascade, British Columbia. The parties were both residents of Multnomah County.

As time passed both parties remarried. Appellant established her residence in San Diego, California, and respondent established his residence in Yakima, Washington. The evidence shows that both have families by the second marriages, and that both are comfortably and satisfactorily situated. There is one commendable feature about the case. Instead of each claiming that the other is not a fit and suitable person to have the custody of the child, both concede that the other is satisfactory to have such custody. The child is now with appellant in San Diego, California, and was not produced at the trial of this cause.

On the first day of August, 1944, respondent filed a motion for modification of the decree so that the child would be permitted to visit respondent at his home in Yakima, Washington, for a period of two or three months each summer. This motion was resisted by appellant, and it, together with some other matters to which it is not necessary to refer, came on for hearing on the second day of August, 1945, before the department of domestic relations. The court rendered its decision on the 26th day of December, 1945. The decree of the court was not entered until March 19, 1946.

By this decree the former decree was modified, granting to respondent the privilege of an extended visit from the child and awarding him custody for a period extending from June 15th to August 15th of each year, including 1946, less a period of five days to be used for travel. The decree further provided that the expense of transportation should be borne by respondent. There had been a controversy over delinquent payments upon the part of respondent which the court found to be in the amount of $373.65. The decree was further modified by increasing to $50 per month the allowance for the support of the child to be paid by respondent during the time the child was in the custody of appellant. In this appeal the only question involved is the modification with reference to custody.

1, 2. Courts are always jealous of their jurisdiction. The child was in Canada at the time the decree of divorce was entered in this case. Ordinarily, where the child is out of the territorial jurisdiction, the court has no authority to enter any decree with reference to the custody thereof. 27 C.J.S. 1163. But in this case the parties were both residents of Multnomah County, and the absence of the child from the county seems to have been only temporary and for the convenience of the parties. Under those circumstances, the court had jurisdiction to make an award with reference to custody. Griffin v. Griffin, 95 Or. 78, 91, 187 P. 598; Minick v. Minick, 111 Fla. 469, 149 So. 483; Schroeder v. Schroeder, 144 Ga. 119, 86 S.E. 224; Stephens v. Stephens, 53 Idaho 427, 24 P. (2d) 52; Stetson v. Stetson, 80 Me. 483, 15 A. 60; White v. White, 77 N.H. 26, 86 A. 353; State v. Rhoades, 29 Wash. 61, 69 P. 389.

3. While there is some division of authority upon the subject, the majority rule, as well as the better considered cases, holds that the court once having acquired jurisdiction does not lose that jurisdiction to modify a decree by virtue of the fact that the child is removed from the state. 19 C.J. 350, cases in note 38; 27 C.J.S. 1187; also see note 70 A.L.R. 526.

4. We shall now give consideration to the decree as modified by the trial court. Appellant first contends that respondent was not entitled to such modification or any other relief because he did not come into court with clean hands. The contention is made that he was delinquent in payments under and by virtue of the decree as originally rendered. Much authority is cited to the effect that respondent had no standing to apply to a court of equity for a modification of the decree in view of this delinquency. However, we think the matter can be disposed of by the mere statement that the record shows that there was some uncertainty as to the exact amount due under the terms of this decree, and that respondent had expressed himself willing to pay any amount the court found was due. The court found that there was $373.65 due. It was admitted on oral argument that this had been paid. Under the circumstances this contention is without merit.

It is next contended by appellant that the court cannot modify its decree unless there is a showing that there had been a change in the conditions existing at time the original decree was rendered, and the contention is made that there was no showing of any such change as would justify the court in making the modification entered.

5. At the time the decree was entered, both parties were living in Portland, living on very meager earnings. The child was two years and three months old, being cared for by his grandparents in Canada. Respondent was a travelling salesman representing the Planters Peanut Corporation throughout the Pacific Northwest and was on the road a large part of the time. We shall assume that the court rendered the original decree, assuming that the right to visit therein provided for would be available to respondent, since the parties were both residents of Portland at the time.

6. Appellant has moved over a thousand miles from Portland and has taken the child with her. Respondent has established his home in Yakima, Washington, and is not now travelling. The boy is now eleven years of age. It is wholly impractical under the present circumstances for respondent to avail himself of the privilege and right granted to him by the original decree to visit the child at reasonable hours and places. The conditions have changed since the entry of the original decree. These changes were sufficient to justify the court in modifying the decree if thereby the welfare of the child would be enhanced.

7. This brings us to a consideration of the evidence and the affidavits of the parties as to whether or not the court was justified in making this modification of the decree. As was said by Justice LUSK in Claude v. Claude, 1946 ante p. 62, 174 P. (2d) 179, 186:

"The harm to innocent children in a case like this comes from the broken home, and any disposition of their lives that a court in the performance of a judicial function attempts to make, is likely to be but a poor substitute for what they have lost through the divorce of their parents."

We add to this an excerpt from Sachs v. Sachs, 145 Or. 23, 29, 25 P. (2d) 159, 26 P. (2d) 780:

"`The controlling consideration, paramount above all others, is the...